IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
OCTOBER 26, 2006
______________________________
IN THE INTEREST OF T.L.B., A CHILD, _________________________________
FROM THE COUNTY COURT AT LAW NO. 2 OF POTTER COUNTY;
NO. 71,632-2; HONORABLE PAMELA SIRMON, JUDGE _______________________________
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
MEMORANDUM OPINIONAppellant Levohn H. Brown attempts to appeal an order that granted a motion for nonsuit filed by appellee Shanda Lynn Vance and dismissed the suit she brought seeking termination of Brown's parental rights. We dismiss the appeal for want of jurisdiction.
Vance filed her original petition in November 2005, in cause number 71,632-2, in the County Court at Law No. 2 of Potter County. A letter from Brown indicates the petition was served on him in Indiana where he is incarcerated. The trial court granted Vance's motion for nonsuit and dismissed the case without prejudice in a written order signed and filed February 22, 2006. The clerk's record shows the dismissal order disposed of all parties and issues in the case. No motions extending the deadline for perfection of appeal were filed, making March 24, 2006 the last day on which Brown could perfect an ordinary appeal from the trial court's order. See Tex. R. App. P. 26.1(a) (unless exception applies, notice of appeal must be filed within thirty days after judgment is signed); In re Bennett, 960 S.W.2d 35, 38 (Tex. 1997) (orig. proceeding) (appellate timetables run from date dismissal order signed). Brown filed his original notice of appeal on September 20, 2006, making it untimely.
Because the record indicates Brown did not participate in any hearing in this case and did not timely file a post-judgment motion or request for findings of fact or conclusions of law, we must also determine whether his notice was timely to perfect a restricted appeal. See Tex. R. App. P. 30. Notice of appeal in a restricted appeal must be filed within six months of the judgment or order complained of. Tex. R. App. P. 26.1(c). Brown's notice of appeal was filed 210 days, or seven months, after the trial court's order and was also untimely to perfect a restricted appeal.
By letter dated October 11, 2006, we notified Brown that his notice of appeal appeared untimely, and advised that we would consider our jurisdiction over the appeal on or after October 23, 2006. Brown filed a response to our letter on October 23. Most of the information contained in Brown's response pertains to a later termination proceeding rather than to the nonsuited proceeding that is the subject of this appeal. The response does not alter our preliminary conclusion that Brown's notice of appeal was untimely with respect to this appeal. (1)
Our authority on appeal is dependent on a timely notice of appeal. See Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997) (applying former rule). No timely notice of appeal having been filed, we must dismiss the appeal. Accordingly, having given the required notice, and without expressing any opinion on the merits of Brown's attempted appeal from the dismissal of Vance's suit, we dismiss the appeal for want of jurisdiction. Tex. R. App. P. 42.3.
James T. Campbell
Justice
1. Brown's notice of appeal also made reference to the later proceeding, cause number 72, 293, also in the County Court at Law No. 2 of Potter County, in which an order terminating his parental rights was entered on August 30, 2006. His appeal of that order is pending in this court as No. 07-06-0371-CV.
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NO. 07-10-00134-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
JULY 28, 2011
IN THE MATTER OF THE MARRIAGE OF DAVID MICHAEL LITTLE AND CHARLENE MCDOWELL LITTLE
FROM THE 85TH DISTRICT COURT OF BRAZOS COUNTY;
NO. 07-002205-CVD-85; HONORABLE J. D. LANGLEY, JUDGE
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
MEMORANDUM OPINION
Through one issue, appellant Charlene McDowell Little (wife) argues the trial court erred by failing to render a money judgment in her favor against appellee David Michael Little (husband) on the dissolution of their marriage. Finding no error by the trial court, we will affirm its judgment.
Background
During her marriage to husband, wife was involved in a motor vehicle accident and reached a settlement of her resulting injury claim. In August 2007, husband filed a petition for divorce alleging no-fault grounds. The couple had no children. Husband requested a just and right division of the estate of [husband and wife], and confirmation of his separate property. Wife did not file an answer but appeared with counsel for trial.
Following a bench trial, the court signed a decree of divorce in December 2009. The decree contains provisions dividing the marital estate, awarding to each spouse items of tangible and intangible property including accounts. In the next section of the decree, which is entitled Confirmation of Separate Property, after a list of several items confirmed to be the husbands separate property, the decree contains the statement, The Court further confirms the following as the wifes separate property . . . [t]he $75,000 personal injury settlement previously obtained by the wife. At trial, wife offered no proof of the amount of her personal injury settlement nor did she offer evidence that the entire amount received was compensation for personal injuries.[1] Wife filed a motion for new trial arguing she was also entitled to a money judgment against husband for $75,000. Findings of fact and conclusions of law were neither requested nor filed. Wifes motion for new trial was overruled by operation of law and this appeal followed.
Issue and Analysis
Wife argues the trial court erred by not awarding her a $75,000 money judgment against husband, as a means of recovering from him the item confirmed as her separate property. As the sole authority for her argument, wife cites Rule of Civil Procedure 301.[2] Husband points out wife filed no pleadings for the recovery of separate property. In her reply brief, wife concedes she filed no pleading seeking recovery of her separate property, or requesting a money judgment against husband. Wife does not deny the requirement for such pleadings. Rather, relying exclusively on Rule of Civil Procedure 67,[3] she argues she was entitled to a money judgment against husband, based on an unspecified theory of recovery, because the matter was tried by consent.
A courts judgment must conform to the pleadings. Tex. R. Civ. P. 67. But claims or defenses tried by implied or express consent are treated as though raised by the pleadings. Roark v. Stallworth Oil & Gas, 813 S.W.2d 492, 495 (Tex. 1991). An issue not raised by a partys pleading may be tried by consent if evidence on the issue was developed under circumstances indicating the parties understood the issue was part of the case and the other party failed to properly complain. Johnson v. Oliver, 250 S.W.3d 182, 186 (Tex.App.--Dallas 2008, no pet.). However, when the evidence of an unpleaded matter is relevant to pleaded issues, the evidence could not be expected to elicit an objection so the unpleaded matter is not tried by consent. Moneyhon v. Moneyhon, 278 S.W.3d 874, 879 n.6 (Tex.App.--Houston [14th Dist.] 2009, no pet.). Trial by consent is intended to cover the exceptional case where it clearly appears from the record as a whole that the parties tried the unpleaded issue. It is not intended to establish a general rule of practice and should be applied with care, and in no event in a doubtful situation. Jay Fikes & Associates v. Walton, 578 S.W.2d 885, 889 (Tex.Civ.App.--Amarillo 1979, writ refd n.r.e.). The court determines whether an issue was tried by consent by examining the record, not for evidence of the issue, but for evidence of trial of the issue. Beck v. Walker, 154 S.W.3d 895, 901 n.3 (Tex.App.--Dallas 2005, no pet.).
Wife did not file a pleading seeking a money judgment against husband. The only trial reference to wifes personal injury claim and its settlement occurred in the following testimonial exchange between wife and her counsel:
Q. Tell the court about [wifes motor vehicle accident].
A. I was hit by a truck from behind. There was primarily damage to my knee, and I hit my head.
Q. Did that put you on permanent disability?
A. It was not debilitating, but I certainly still feel the pain in my knee.
Q. Okay. Did you file a lawsuit in that case?
A. I did.
Q. And did you settle that lawsuit?
A. Yes, we did.
Q. Okay. And the proceeds that you received in that settlement, what happened to it?
A. I dont think I still have anything left from the lawsuit.
Q. No, I mean, when you received the money, what did you do with it?
A. [Husband] had it. I mean, it was turned over to [husband]; but I--I cant tell you what he did with it.
Q. So you dont know what happened to it yourself?
A. No.
Q. Okay. Has he ever told you what he did with the funds?
A. I never questioned him about it. I dont know what he did.
The primary issue for trial in this case was division of the community estate of husband and wife. In a divorce decree, the trial court shall order a division of the estate of the parties in a manner that the court deems just and right, having due regard for the rights of each party and any children of the marriage. Tex. Fam. Code Ann. § 7.001 (West 2006); see § 3.003(a) (presumption that all property possessed by either spouse during marriage or on hand at dissolution of marriage is community). Evidence of property acquired or owned during marriage, such as wifes personal injury settlement, was therefore highly relevant to division of the community estate. Wife never asked the court for relief by counterclaim, either prior to or during trial, related to recovery of her separate property from husband. Indeed, during closing argument, while questioning counsel for wife about his fee arrangement, the court commented, I havent heard a tort claim in this case. We conclude the brief mention of wifes personal injury settlement, relevant to division of the marital estate, is no evidence the court tried an unpleaded, and as yet unspecified, theory for recovery of separate property funds from husband.[4] The doctrine of trial by consent has no application here. Accordingly, the trial court did not err by refusing to render a money judgment in favor of wife.
We overrule wifes sole issue and affirm the judgment of the trial court.
James T. Campbell
Justice
[1] Husband does not complain of the judgment by cross-appeal. Tex. R. App. P. 25.1(c).
[2] In pertinent part, Rule 301 provides:
The judgment of the court shall conform to the pleadings, the nature of the case proved and the verdict, if any, and shall be so framed as to give the party all the relief to which he may be entitled either in law or equity.
Tex. R. Civ. P. 301.
[3] Rule 67 provides:
When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. In such case such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made by leave of court upon motion of any party at any time up to the submission of the case to the Court or jury, but failure so to amend shall not affect the result of the trial of these issues; provided that written pleadings, before the time of submission, shall be necessary to the submission of questions, as is provided in Rules 277 and 279.
Tex. R. Civ. P. 67.
[4] Cf. Schleuter v. Schleuter, 975 S.W.2d 584, 587 (Tex. 1998) (distinguishing recovery of separate property from division of marital estate).